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Supreme Problem: One Tribe Pressured to Disregard Sovereignty for Good of the Whole

Rob Capriccioso

11/21/13

When should tribal sovereignty for all trump the sovereignty of one tribe? That’s a question many in Indian country are pondering as the U.S. Supreme Court sets its sight on a case that could trump tribal sovereign immunity and off-reservation gaming for all tribes.

The weighty scenario has its roots in the Eastern Upper Peninsula of Michigan with Bay Mills Indian Community citizens and leaders who believe they have the sovereign right to open a casino in Vanderbilt, Michigan, which is 111 miles away from their reservation, closer to a larger population base. They opened a small gaming operation there in November 2010, but it closed in March 2011 after U.S. District Court Judge Paul Maloney issued a preliminary injunction ordering the casino to shut down while the matter of whether the casino was legal worked its way through the courts.

Bay Mills fought on, arguing that because the tribe used money from the Michigan Indian Land Claims Settlement Act of 1997 to buy the land for the Vanderbilt casino, it is protected Indian trust land, just like trust lands taken into trust for tribal casinos by the federal government. The tribe argues that the Indian Gaming Regulatory Act (IGRA) – the 1988 law that legalized Indian gaming in the United States – contains a provision that allows such land to be designated “Indian land,” so federal law provides the loophole—one the tribe is more than willing to exploit. Many tribes have received federal settlement monies in recent years, so if the argument is correct, such tribes could be eligible to purchase their own trust lands without having to go through the long-lamented federal bureaucracy.

“Bay Mills apparently built the casino as a test case to determine the scope of its rights under the Michigan Indian Land Claims Act of 1997,” wrote Indian affairs lawyer Gabe Galanda in a recent editorial for Indian Country Today Media Network in which he expressed skepticism of the idea.

Both the National Indian Gaming Commission (NIGC) and the Department of the Interior have issued opinions denying permission for the tribe to open the casino, saying in short that the federal government is supposed to have control over Indian gaming, not the tribes. But Bay Mills doesn’t much care about those opinions because the tribe, like many others, believes it has the inherent right to conduct gaming on Indian lands as it sees fit, and the federal and state governments are interfering because they want increased control over off-reservation matters that have never been resolved by Congress or the courts. Many tribal citizens at Bay Mills and in Indian country at-large view IGRA as not the beginning of tribes’ ability to conduct gaming, but as the beginning of the federal and state governments’ ability to legally take money away from such operations.

The state of Michigan also disagrees with the tribe’s argument, so it challenged the Vanderbilt casino. Under Maloney’s injunction, the state was initially successful, but in August 2012 the Sixth Circuit Court of Appeals sided with the tribe’s assertion that tribal sovereign immunity prevented Michigan from suing the tribe. The casino issue was left alone for the moment, and sovereign immunity became the topic du jour.

In October 2012, Michigan asked the Supreme Court to review the case. The high court agreed to do so in June, despite Bay Mills working with the U.S. solicitor general to file a brief with the court asking it not to take the case. The court has scheduled oral arguments for December 2, and the justices could not only end up deciding whether federal courts have jurisdiction to tinker with off-reservation casinos, they could also limit tribal sovereign immunity for all tribes, which some of the justices would very much like to do if the past is any indicator.

The court could also rule that the tribe is right. Several tribes and Indian organizations, including the National Congress of American Indians (NCAI) and the Native American Rights Fund (NARF), have filed amicus briefs with the court supporting the tribe’s case that its sovereign immunity should be protected.

State officials opposed to Indian gaming beyond Michigan think a ruling against Bay Mills could allow them to limit Indian gaming and sovereignty in their states; some have filed amicus briefs supporting Michigan’s efforts against the tribe.

Indian country beyond Bay Mills has found itself in a difficult position. The easiest way to make the larger gaming and immunity problems go away would be for Bay Mills to waive its immunity, let Michigan sue it, and then let lower courts decide the immunity issue and/or the legality of the casino. Tribes, lobbyists and Indian legal experts have implored Bay Mills to do something – anything – to keep the case away from this clutch of justices. “Stay away from the Supreme Court!” John Echohawk, director of NARF, and Jefferson Keel, former president of the NCAI, said in a joint commentary released in early September—yes, even if that means waiving sovereign legal immunity, the legal doctrine that prevents a sovereign tribe from being sued without the sovereign tribe's consent and one of the major tenets of tribal sovereignty.

“[S]ince 2005, with the installment of John Roberts as Chief Justice, the retirement of Justices [Sandra Day] O’Connor, [David] Souter and [John Paul] Stevens, the tribes winning percentage has plummeted to 10 percent—with 1 win and 9 losses in the 10 Indian law cases heard by the Roberts Court,” wrote Echohawk and Keel in their guest post on the Turtle Talk blog. “And neither Chief Justice Roberts nor Justice [Samuel] Alito has voted in favor of tribal interests in a single case!”

The current mantra is “retreat”—keep cases that could shift federal Indian policy in lower courts that have been more friendly to Indian country, and let controversial issues be decided by Congress or the president and his policymakers.

Bay Mills leaders have rebuffed those suggestions, with tribal Chairman Kurt Perron saying in a press release that the tribe is “confident that the nation’s highest court will agree with our position.” After a November 6 election tie, the tribe is holding a new election December 10 to elect a chairman after the case will have already been argued before the Supreme Court. Perron is running, and while the election is pending, Vice-Chair John Paul Lufkins is carrying out the chairman’s responsibilities. A tribal spokesman said he didn’t know whether any of the tribe’s new council or those running for chairman other than Perron would want to pull the case once the election matters are settled.

This summer, several national tribal advocates encouraged Bay Mills citizen Bryan Newland, a lawyer with Fletcher Law in Michigan who recently worked as a policy advisor on Indian affairs at the U.S. Department of the Interior in Washington, to ask the tribe’s membership to vote in favor of a resolution that would partially limit the tribe’s sovereign immunity. Newland did so, but on September 5 the membership voted him down, indicating their immunity was too precious to their tribal sovereignty to waive in this instance. After that, Newland ran for and won the chief judge position at Bay Mills, and he will be traveling regularly from his home in lower Michigan where he works for the Fletcher firm, which is owned by Zeke Fletcher, a citizen of the Grand Traverse Band of Ottawa and Chippewa Indians and brother of Matthew L.M. Fletcher, the Michigan State University legal scholar who helps run the Turtle Talk Indian law blog.

Newland insists he did the right thing. “It’s not a pro-Indian Supreme Court, so why would they want to take this case unless it was to somehow limit tribal rights?” he says. “Everybody who is watching this case who is familiar with Indian law is hoping for the best, but preparing for the worst.”

Newland believes Michigan wants to use a negative Supreme Court decision to renegotiate several tribal-state gaming compacts that expire this year—something he wants to be sure outsiders of the tribe understand. “Michigan deserves a lot of blame here for elevating this case to this level.”

Lawyers for Bay Mills have also been pressured by national tribal affairs experts to get leaders of the tribe to see the bigger picture but, to date, the tribe’s council has not backed down. Some of the national folks have gone so far as to ask the tribe’s lawyers to waive immunity without the council’s approval, according to sources who have listened in on conference calls with the lawyers on this matter.

All the while, tribal-federal relations experts and lawyers, in a variety of forums – from prestigious legal journals to blog commentaries to speeches at Indian events to impassioned conference calls to commentaries on ICTMN – have been urging the tribe to waive its immunity. “It is unfortunate that some tribes who seek to build casinos far from their reservations are willing to risk the inherent sovereign rights of all tribes,” wrote the tribal leaders of the Nottawaseppi Huron Band of Potawatomi and the Saginaw Chippewa Indian Tribe in a September op-ed published by ICTMN. “Once again, Indian country finds itself before the Supreme Court in a case that should have never been considered in the first place.” The leaders did not note that some of their own casino operations in Michigan could be affected if Bay Mills’ argument is upheld because the Vanderbilt casino would be closer to their casino operations; and they did not note that some of their own tribal decisions have harmed other tribes in the past, such as when the Saginaw Tribe previously hired lobbyists involved with the infamous Jack Abramoff to try to limit gaming for other Michigan tribes.

Some Indian affairs experts have also attempted to paint this as a non-Indian takeover of the tribe that deserves to be shut down. At recent gatherings of NCAI and the United South and Eastern Tribes, one name kept rising up as the bogeyman in all this—Mike Malik, a rich non-Indian tribal casino investor. Malik and Marian Ilitch, a wealthy business owner, reportedly helped the tribe pursue its land claims settlement in an effort to secure off-reservation casinos for the tribe that Malik and Illich would invest in. Malik has also been accused of manipulating tribal councils of other tribes he has worked with in order to get the councils to pursue his goals. According to his online biography, he has worked on behalf of several tribes to secure casinos. He has not returned requests for comment regarding the Bay Mills Supreme Court case.

Another solution to the dilemma would be for Indian-friendly federal officials to realize the potential problem a negative ruling could bring about for tribes as a whole, so they could find a reason to shut down Bay Mills’ argument before the Supreme Court hears the case. NCAI, including John Dossett, have written to NIGC and officials with Interior, trying to get them to intervene with no luck so far.

This route appears to be a dead end, with Kevin Washburn, current Assistant Secretary—Indian Affairs at Interior, admitting the case has he and his fellow federal Indian trust holders consternated. “I can’t talk about a matter in litigation,” he told ICTMN in October. “I can say, I think, that I regret the Bay Mills Tribe has put us in this position. That’s probably the most that I can say.” Interior and NIGC officials have told Bay Mills that the federal position is that Indian gaming at Vanderbilt is illegal. Plus, federal officials say Interior is not really a regulatory authority, so it doesn't have broad authorities to stop tribes from opening casinos or other developments on off-reservation lands.

Bay Mills, meanwhile, is happy that Interior and the NIGC have not been able to get involved and is chagrined that so much of Indian country has spent so much time advocating against the tribe’s position.

“Don’t you think this anti-Bay Mills advocacy [from tribes] could affect the Supreme Court’s decision in a way that could hurt us all?” asked one Bay Mills citizen who spoke on the condition of anonymity because the council had not given the person permission to speak. “I think the tribes should have been lining up to defend our position so that tribes around the country could benefit if the Supreme Court does the right thing.”

Tribal spokesman Allyn Cameron says that until a new chair is seated for the tribe after the chairman’s election on December 10, the tribe will not have any more official comment regarding the case.

But Richard Guest, a legal expert with NARF, says it has been “quite difficult” for many tribal interests to figure out how to support the Bay Mills position while protecting Indian immunity and gaming policy. Several briefs have been filed in support of the tribe—one by Indian legal professors, one by NCAI and NARF’s Supreme Court project, and another filed by nine tribes, headed by the Seminole Tribe of Florida. The U.S. Department of Justice also weighed in with an amicus brief supporting the tribe’s sovereign immunity, and Deputy United States Solicitor General Edwin Kneedler will argue on behalf of the federal support of Bay Mills for 10 minutes during oral arguments. Neal Katyal, former Acting Solicitor General of the United States, will be arguing on behalf of Bay Mills the rest of the time.

Only one other tribe, the Oneida Nation of New York, has received intense pressure from Indian country for it to waive its sovereign immunity in recent times to avoid the Supreme Court. [Oneida Indian Nation owns Oneida Nation Enterprises, the parent company of ICTMN.] In that instance, the tribal nation agreed to waive its immunity after cert had been granted by the Supreme Court in Madison County v. Oneida Indian Nation of New York. After the tribe waived its immunity, the Supreme Court remanded the case back to the lower courts to consider the merits of the case—a result that pleased some Indian affairs watchers, who didn’t want Indian gaming policy to be affected nationwide by a Supreme Court decision that would be bad for tribes.

Joseph Webster, an Indian Affairs lawyer with Hobbs Straus, said it’s definitely not common for tribes to waive immunity to avoid going to the Supreme Court, but it is an option more will likely consider. “However,” Webster adds, “many Indian tribal governments routinely waive their immunity in a variety of circumstances, such as commercial transactions and agreements with other governments. The federal government and state governments also routinely waive their immunity. The act of waiving immunity is an exercise of sovereignty, since the government that grants the waiver controls the scope and duration of the waiver.”

Bay Mills tribal leaders and citizens, meanwhile, say that all the scrutiny has been tough, but they also say their tribe is accustomed to being a go-it-alone tribe, fighting for its sovereignty on its own terms. And they truly believe the Supreme Court will be convinced of their argument.

As for the detractors from other tribes and lobbyists, the tribe has chosen not to fight back. “Bay Mills will not make any negative comment about other tribes,” said Kathryn Tierney, a lawyer for the tribe.

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It is a lot to digest at one time! I feel tribal sovereignty is not to be tampered with since every right we try to win in the courts is not always successful enough for all tribes. I do agree that Casinos should not be infringed upon by other tribes.